AMENDED AND RESTATED
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement dated June 7, 1996 effective January
24, 1996 ("Agreement") is by and between, WESTMARK GROUP HOLDINGS INC., a
Colorado corporation ("Company") and XXXXX XXXXXXXX, an individual
("Consultant").
WITNESSETH:
WHEREAS, the parties hereto entered into that certain Consulting
Agreement dated January 24, 1996; and
WHEREAS, the parties wish to amend said Consulting Agreements;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, and considerations herein contained, the parties hereto
agree as follows:
1. Engagement. Subject to the terms and provisions of this Agreement,
the Company hereby engages Consultant, as an independent contractor, to provide
consulting services ("Services") as set forth in Section 2 below. Consultant
hereby accepts such engagement and shall, during the term of the Agreement,
perform the Services as herein provided.
2. Services. Subject to the terms and conditions of this Agreement, the
term "Services" shall mean providing certain consulting services to the Company
as may be mutually agreed upon by the parties. Such services are outlined in
Schedule "A" attached hereto. Consultant agrees to provide such Services on a
non-exclusive basis and as an independent contractor and not as an employee of
the Company. Nothing in this Agreement shall be construed to prevent Consultant
from performing services on behalf of himself or any person or entity.
3. Compensation. For the Services performed by Consultant for the
Company, the Company will issue to Consultant 80,000 shares of common stock of
the Company pursuant to a S-8 Registration Statement. The Consultant agrees to
provide the Company 24 hours advance written notice prior to an attempted sale
of shares of Common Stock to be issued hereunder and the Company will have the
right of first refusal for a period of 24 hours to purchase from Consultant such
shares at the then market value.
Consultant shall be restricted from selling more than 8,000 shares of
Common Stock per month for a ten month period.
4. Status Reports. For the term of this Agreement, at the Company's
written Request, Consultant shall prepare and submit to the Company a written
status report describing the status of any and all projects for which Consultant
has provided Services.
5. Term. The term of this Agreement shall commence an January 24, 1996
and
shall continue in full force and effect for a period of two years.
6. Authority. Consultant understands and agrees that under the terms
and provisions of this Agreement, Consultant is not an employee, representative
or agent of the Company or any of its affiliates and therefore has no power or
authority whatsoever to act on behalf of, or bind the Company or any of its
affiliates, with respect to any matter or contract. Furthermore, this Agreement
does not create and shall not be construed to create any joint venture or
partnership relationship between the parties. No officer, employee, agent or
independent contractor of either party or their respective affiliates shall be
deemed at any time to be an employee, servant, agent or contractor of the other
for any purpose whatsoever.
7. Confidentiality. In the course of the performance of Consultant's
duties hereunder, Consultant recognizes and acknowledges that Consultant may
have access to certain confidential and proprietary information of the Company
or any of its affiliates. Without the prior written consent of the Company,
Consultant shall not disclose any such confidential or proprietary information
to any person or firm, corporation, association, or other entity for any reason
or purpose whatsoever, and shall not use such information, directly or
indirectly, for Consultant's own behalf or on behalf of any other party.
Consultant agrees and affirms that all such information is the sole property of
the Company and that at the termination and/or expiration of this Agreement at
the Company's written request, Consultant shall promptly return to the Company
any and all such information so requested by the Company.
The provisions of this Section 7 shall not, however, prohibit
Consultant from disclosing to others or using in any manner information that:
(a) has been published or has become part of the public domain other
than by acts, omissions or fault of Consultant;
(b) has been furnished or made known to Consultant by third parties
(other than those acting directly or indirectly for or on behalf of Consultant)
as a matter of legal right without restriction on its use or disclosure;
(c) was in the possession of Consultant prior to obtaining such
information from the Company in connection with the performance of this
Agreement; or
(d) is required to be disclosed by law.
8. Miscellaneous.
(a) Assignment. All of the terms, provisions and conditions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. This
2
Agreement shall not be assigned or transferred by either party, nor shall any
interest herein be assigned, transferred, pledged or hypothecated by either
party without the prior written consent of the other party.
(b) Applicable Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida.
(c) Entire Agreement Amendments and Waivers. This Agreement constitutes
the entire agreement of the parties hereto and expressly supersedes all prior
and contemporaneous understandings and commitments, whether written or oral,
with respect to the subject matter hereof, including the Consulting Agreement
dated January 24, 1996. No variations, modifications, changes or extensions of
this Agreement or any other terms hereof shall be binding upon any party
hereto unless set forth in a document duly executed by such party or an
authorized agent or such party.
In WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the day and year first written above.
WESTMARK GROUP HOLDINGS, INC.
By:/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
CONSULTANT
/s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx
3
SCHEDULE A
"Services" include, but are not limited to, the following:
1. Advising the Company upon potential leasing opportunities, secure
mortgage credit, warehouse lines of credit, computer and other equipment
leasing, office rentals and other related opportunities.
2. Perform preliminary analysis on potential merger and acquisition
candidates.
3. Providing any other services as shall be mutually agreed upon by
Consultant and Company.
4
